Citation Nr: 0105669
Decision Date: 02/26/01 Archive Date: 03/02/01
DOCKET NO. 96-43 448 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Roanoke, Virginia
THE ISSUE
Entitlement to an increased rating for service-connected
post-traumatic stress disorder (PTSD), currently rated as 30
percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
K. Ehrman, Counsel
INTRODUCTION
The veteran served on active duty from August 1970 to October
1974.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an October 1995 rating decision of the
RO which, in pertinent part, denied the veteran's claim for a
rating in excess of a 30 percent evaluation for service-
connected PTSD. (Claims of temporary total ratings under
38 C.F.R. § 4.29, while denied by the RO at that time, were
subsequently granted by the Board in January 1999).
In September 1998, the veteran's testimony was obtained at a
hearing before the undersigned Member of the Board at the VA
Central Office in Washington, D.C.
In January 1999, the Board remanded the increased rating
claim for necessary development.
In statements from the veteran's representative, dated in
November and December 2000, the issue of entitlement to a
total rating for compensation purposes based on individual
unemployability was again raised. This matter is referred to
the RO for action deemed appropriate.
REMAND
At the August 1999 psychiatric examination for VA for rating
purposes, the psychiatrist diagnosed psychotic disorder, not
otherwise specified, with likely paranoid type schizophrenia
or schizoaffective disorder, by history; chronic PTSD, by
previous report; crack cocaine abuse with possible
polysubstance abuse; noncompliance with treatment; and
personality disorder with paranoid and schizoid traits. The
examiner indicated that he could not determine how much of
the veteran's functional impairment was related to his
psychotic disorder, PTSD, crack cocaine abuse or personality
disorder. The veteran's agitation made more in depth probing
impractical and potentially not safe to attempt, according to
the examiner. The examiner also indicated that he did not
have "much understanding about which specific symptoms of
PTSD, other than 'flashbacks' which were mentioned but not
described [ ], and his poor social and occupational
functioning, potentially from the PTSD," were part of the
diagnosis. It was indicated that formal psychological
functioning could be attempted, but was beyond the scope of
the examination conducted on that date.
Since the August 1999 psychiatric examination, the veteran
has been hospitalized by VA on several occasions, with PTSD
or a history of PTSD being diagnosed during each
hospitalization. He continues, however, to also receive
diagnoses of paranoid schizophrenia, cocaine dependence and
personality disorder.
The medical evidence of record shows a long history of
multiple psychiatric pathologies of which only PTSD is
service connected. VA and private treatment records dated in
January, July and August 1995, May 1997, December 1997,
January 1998, and September and October 1999, show diagnoses
of: schizo-affective disorder, bipolar type; personality
disorder with narcissistic traits; cocaine abuse; PTSD;
schizophrenia, paranoid type; cluster B personality disorder
traits; and cocaine, marijuana and alcohol dependence; as
well as multiple clinical notations of chronic homelessness,
and unemployability. In May 1997, the veteran admitted to
using substances, including cocaine a few days earlier.
Additionally, various records show noncompliance with his
PTSD medications. See VA hospital treatment summaries of
August 1995 and May 1999. This clinical picture is further
complicated by the January 1998 notations of a VA examiner
who found the veteran, "not [to] demonstrate any PTSD
symptomatology other than [his] belie[f] that the military is
responsible for his mental illness because he was first
hospitalized [then]."
Based on the conflicting and incomplete evidence and because
the veteran has not been examined for rating purposes
subsequent to the most recent periods of hospitalization, the
Board is of the opinion that further efforts should be
undertaken to determine the presence and, if present, the
severity of the service-connected PTSD.
Notation is also made that on VA hospitalization on December
25, 1997, the veteran gave a history of pertinent treatment
at "various" VA hospitals in Virginia, New York, and
Pennsylvania. The veteran should be requested to
specifically identify any additional pertinent treatment, the
records from which have not already been obtained for use in
the appeal.
It must also be noted that there has been a significant
change in the law during the pendency of this appeal. On
November 9, 2000, the President signed into law the Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat.
2096 (2000). Among other things, this law eliminates the
concept of a well-grounded claim, redefines the obligations
of VA with respect to the duty to assist, and supercedes the
decision of the United States Court of Appeals for Veterans
Claims (Court) in Morton v. West, 12 Vet. App. 477 (1999),
withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet.
App. Nov. 6, 2000) (per curiam order), which had held that VA
cannot assist in the development of a claim that is not well
grounded. This change in the law is applicable to all claims
filed on or after the date of enactment of the Veterans
Claims Assistance Act of 2000, or filed before the date of
enactment and not yet final as of that date. Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart
(a), 114 Stat. 2096, ___ (2000). See also Karnas v.
Derwinski, 1 Vet. App. 308 (1991).
Because of the change in the law brought about by the
Veterans Claims Assistance Act of 2000 (VCAA), a remand in
this case is required for compliance with the notice and duty
to assist provisions contained in the new law. See Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, §§ 3-4,
114 Stat. 2096, ___ (2000) (to be codified as amended at 38
U.S.C. §§ 5102, 5103, 5103A, and 5107). In addition, because
the VA RO has not yet considered whether any additional
notification or development action is required under VCAA, it
would be potentially prejudicial to the appellant if the
Board were to proceed to issue a decision at this time. See
Bernard v. Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op.
No. 16-92 (July 24, 1992) (published at 57 Fed. Reg. 49,747
(1992)). Therefore, for these and reasons already listed
above, this Board remand is required.
In view of the foregoing, this case is REMANDED for the
following:
1. The RO should appropriately contact
the veteran and request that he submit
the names, addresses, and approximate
dates of treatment of all VA and non-VA
(private) care providers who have treated
him for PTSD, PTSD-related symptoms, or
any other psychiatric disorders, from
February 1994 to the present, including
any psychiatric treatment received at any
of the VA Medical Centers located in New
York, Pennsylvania, or Virginia, from
February 1994 to the present.
Thereafter, the RO should obtain copies
of any additional VA and/or non-VA
(private) records, if not already of
record, including from any of the VA
Medical Centers located in New York,
Pennsylvania, or Virginia, dated from
February 1994 to the present, as well as
any other VA and/or non-VA medical
facility or provider identified by the
veteran, for similar dates.
As to any private treatment records, the
RO should first secure the necessary
release(s), prior to the RO obtaining
copies of any such records.
2. After associating all available
pertinent records with the claims files,
the RO should arrange for the veteran to
undergo a VA psychiatric examination to
determine the presence of PTSD and, if
present, the severity thereof. The
veteran's claims files and a complete
copy of this REMAND must be made
available to and be reviewed by the
examiner in connection with the
examination. All indicated tests, to
include psychological testing, should be
conducted.
If a diagnosis of PTSD is made, all
symptoms due solely to PTSD should be
reported in detail. In this regard, the
examiner should specifically render
findings with
respect to the existence and extent of
memory loss, depressed mood, anxiety,
panic attacks, sleep impairment, impaired
judgment, speech, impulse control and/or
impaired thought processes, neglect of
personal hygiene and appearance, suicidal
ideation, and delusions or
hallucinations. The examiner also should
render a multi-axial diagnosis, including
assignment of a Global Assessment of
Functioning (GAF) Scale score with
explanation of what the score means in
terms of the applicable rating criteria.
If more than one psychiatric disorder is
diagnosed, such as schizo-affective or
personality disorders, schizophrenia, or
drug or alcohol dependence, the examiner
should indicate whether it is possible to
distinguish the symptomatology
attributable to service-connected PTSD
from any other diagnosed disorder(s), and
if so, the extent to which PTSD alone
causes impairment such as set forth in
the applicable rating criteria.
3. The RO must review the claims file
and ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied. For further guidance
on the processing of this case in light
of the changes in the law, the RO should
refer to VBA Fast Letter 00-87
(November 17, 2000), as well as any
pertinent formal or informal guidance
that is subsequently provided by VA,
including, among other things, final
regulations and General Counsel precedent
opinions. Any binding and pertinent
court decisions that are subsequently
issued also should be considered.
4. Thereafter, the RO should
readjudicate the claim for an increased
rating for service-connected PTSD,
currently rated as 30 percent disabling,
in light of all of the pertinent evidence
of record (to include that associated
with the claims files on remand), and all
applicable legal authority.
5. If the decision remains adverse to
the veteran, he and his representative
should be issued a supplemental statement
of the case (SSOC) and afforded a
reasonable opportunity to respond before
the case is returned to the Board for
further appellate consideration.
Evidence recently submitted and not
previously considered must be reviewed
and cited in the SSOC.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.44-8.45 and
38.02-38.03.
BARBARA B. COPELAND
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).